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1962 DIGILAW 15 (MP)

TEJBHAN SINGH BHAGWANT SINGH v. COLLECTOR, REWA

1962-01-29

K.L.PANDEY, P.V.DIXIT

body1962
ORDER Dixit, C.J. The petitioner in this case prays for the issue of a writ of certiorari for quashing two orders of the Collector, Rewa, communicated to him in October 1961, by which he was removed from the office of Panch of the Nyaya Panchayat, Mahsamb, and his name was removed from the register of adults maintained under the Vindhya Pradesh Gram Panchayat Ordinance, 1949, and the rules made thereunder. The opponent No. 2 is a body constituted under the Vindhya Pradesh Gram Panchayat Ordinance, 1949. It consists of all adults permanently residing within the area for which the Gram Sabha is established, u/s 5 no adult is entitled to be or to remain a member of a Gram Sabha if he suffers from any of the disqualifications mentioned in that section. One of the disqualifications is conviction for an offence involving moral turpitude, and an adult who has been convicted for such an offence is not entitled to be or to remain a member of the Gram Sabha. The rules framed under the Ordinance require the maintenance in the prescribed form of a register containing the names and particulars of all adults who are entitled to be the members of the Sabha u/s 5 of the Ordinance, Rule 5 says that the Chief Commissioner may order periodical revisions of the register. Rules 10 to 15 deal with the publication of the register, filing of claims and objections with regard to the entries or omissions therein, the publication of claims and objections and their adjudication, the rectification of the entries and the realisation and the publication of the revised register. Rule 15 gives to the District Magistrate the power to direct the entry in the register of the name of any person who, though qualified for being enrolled, was not so enrolled or who could not be enrolled due to any disqualification existing at the time of the preparation, amendment or revision of the register, on his satisfying himself that his name ought to be enrolled or that the disqualification had ceased to exist. Every Gram Sabha has to elect five adults to act as Panchas in the Nyaya Panchayat of the circle for which the Gram Sabha has been constituted. The Panchas so elected constitute the Nyaya Panchayat. The Panchas elected to the Nyaya Panchayat u/s 43 are required u/s 44 to elect from amongst themselves a Sarpanch. Every Gram Sabha has to elect five adults to act as Panchas in the Nyaya Panchayat of the circle for which the Gram Sabha has been constituted. The Panchas so elected constitute the Nyaya Panchayat. The Panchas elected to the Nyaya Panchayat u/s 43 are required u/s 44 to elect from amongst themselves a Sarpanch. Section 48 lays down that a Panch may be removed at any time by the prescribed authority in the manner and for the reason prescribed. Rule 61, which deals with the removal of a member, Sarpanch or Panch, runs as follows :- (1) The prescribed authority or the Chief Commissioner may, at any time after calling for an explanation from the person concerned, remove a member of a Panchayat or Panch or Sarpanch of a Nyaya Panchayat- (a) If he refuses to act or becomes incapable of acting, or absents himself without sufficient cause from more than three consecutive meetings of the Panchayat or Nyaya Panchayat and if the Panchayat or the Nyaya Panchayat recommends his removal by a majority of two-thirds of members; or (b) If his continuance in office is undesirable in the interests of the public or of the Panchayat; or (c) In case of a Panch or Sarpanch of the Nyaya Panchayat he has contravened the provisions of sub section (3) of section 49 of the Ordinance; or (d) If he has abused his position or has continuously failed to perform the duties imposed by the Ordinance or any rules made thereunder, (2) A person removed under this rule shall not be entitled to be re-elected to a Gram Sabha or Panchayat for a period of three years in any capacity. The prescribed authority is the Collector. The petitioner's name was first entered in the register of adults in the year 1952-53. In 1954 he was elected as a Panch of the Nyaya Panchayat and he also became the Sarpanch. On 10th February 1960 a notice was issued by the Collector to the petitioner asking him to show cause why his name should not be removed from register of adults as according to the police report he had been convicted for an offence u/s 457, Indian Penal Code involving moral turpitude. The notice also asked him to show cause why he should not be removed from the offices of Panch and Sarpanch of the Nyaya Panchayat for the same reason. The notice also asked him to show cause why he should not be removed from the offices of Panch and Sarpanch of the Nyaya Panchayat for the same reason. Another notice was issued to him on 14th July 1961 stating that as he had been convicted for an offence involving moral turpitude and as he continued to take part in "activities involving moral turpitude" his continuance in the offices of Panch and Sarpanch was not desirable in the interests of the public or the Panchayat, and calling upon him to show cause why he should not be removed from the offices of Panch and Sarpanch. In reply to these notices, the petitioner, while admitting that he had been convicted u/s 457, Indian Penal Code, said that the conviction for that offence did not involve any moral turpitude as it was in respect of an incident which occurred in a property dispute between him and the members of his family, and that, therefore, his name should not be removed from the register of adults. He further submitted that this conviction was before his election as Panch and Sarpanch and since then his life was clean and without any blemish; and that there was no cause for his removal from the offices that he was holding. The Collector was not satisfied with this explanation. He regarded the applicant's conviction u/s 457, Indian Penal Code as one for an offence involving moral turpitude justifying the removal of his name from the register of adults. He rejected the petitioner's statement about the decent life he was living as, according to him, it was not corroborated by the police report. Accordingly the Collector made the two impugned orders. In our judgment, the validity of the two orders pas3ed by the Collector, Rewa, cannot be upheld. Under the rules relating to the preparation and publication of the register of adults, once the register is finalised and published under rule 14 the name of any person entered in the register cannot be removed while the register is in operation on the ground that at the time of the making of the entry the person was disqualified u/s 5 of the Ordinance. If the name of a disqualified person is borne on the final register, then the question of the removal of his name can be considered and decided only at the time of the next revision of the register in accordance with rules 10 to 14. By rule 15 a provision has been made for the enrolment of a person whose name could not be enrolled at the time of the preparation of the register due to any disqualification existing at that time. Be there is no similar provision for meeting the converse situation of the deletion from the register of the name of a person who, though disqualified at the time of the preparation of the register, was yet enrolled. The proviso to rule 14, on which reliance was placed by the learned Additional Government Advocate, has no applicability here. That proviso says that the 'District Magistrate may, while the register is in operation, order the removal therefrom of the name of any person who is dead or who has become disqualified u/s 5 of the Ordinance. " The words "has become disqualified" in proviso to rule 14 mean that the disqualification justifying the removal of the name of a person must have been incurred after the register had been finalised. As was said by Kindersley V.C. in Archer v. Kelly 20 LJ (C.H.) 911, "the word 'become' in its usual and proper acceptation imports a change of condition, that is the entering into a new state or condition by a change from some former state or condition." For the applicability of the said proviso, it is essential that the new state or the change in the condition due to any disqualification u/s 5 of the Ordinance must occur after the register has come into operation. Here admittedly the disqualification on the basis of which the Collector purported to remove the name of the petitioner from the register was one which he had incurred long before the register was prepared and was not any disqualification which he incurred after his name had been entered in the register. It is also very plain from the order made by the Collector removing the name of the petitioner from the register that the order was not one made during the revision of the register in accordance with rules 10 to 14. It is also very plain from the order made by the Collector removing the name of the petitioner from the register that the order was not one made during the revision of the register in accordance with rules 10 to 14. In the return filed on behalf of the Collector it has been suggested that the first periodical revision of the register became due in 1955-56 and, therefore, the Collector, Rewa, acting on a report received from the Superintendent of Police, Rewa, issued a notice to the applicant to show cause why his name should not be removed from the register of adults. The rules do not give any such power to the Collector when the register is under revision. The claims and objection that are filed to the provisional register published under rule 10 have to be heard and adjudicated upon under rule 13 by an officer appointed by the District Magistrate on that behalf on the date, time and place appointed for the purpose. The register can be corrected only in accordance with such adjudication of a claim or objection. Bale 13 does not give to the Collector the power which he purported to exercise in the present case. That being so, the Collector's order removing the petitioner's name from the register of adults is altogether without-jurisdiction and illegal. The order removing the petitioner from the office of Panch is bad for the reason that the applicant was never apprised of the precise grounds on which his continuance in the office was thought to be undesirable in the interests of the public or of the Panchayat and he was not given any opportunity for submitting explanation to the charges on which the Collector came to the explanation that it was not desirable in the interests of the public or of the Panchayat to continue the petitioner as a Panch. The grounds enumerated in rule 61 for the removal of a Panch or Sarpanch have no relation whatsoever to the disqualifications stated in section 5 of the Ordinance. A person may not be disqualified u/s 5, yet he can be removed on any of the grounds specified in rule 61. The grounds enumerated in rule 61 for the removal of a Panch or Sarpanch have no relation whatsoever to the disqualifications stated in section 5 of the Ordinance. A person may not be disqualified u/s 5, yet he can be removed on any of the grounds specified in rule 61. If a Panch is intended to be removed under rule 61 (I) (b) on the ground that his continuance in office is undesirable in the interests of the public or of the Panchayat, then the ground or grounds on which the removal is to be based must have some relevance to the desirability or undesirability of his continuance in the office keeping in view the interests of the public or of the Panchayat. Under that clause be cannot be removed on a ground which has no bearing whatsoever on the matter mentioned in rule 61 (1) (b). Here the error into which the Collector fell was to regard the petitioner's conviction u/s 457, Indian Penal Code, and his alleged participation in certain "activities involving moral turpitude" as standing by themselves and divorced from the consideration of desirability or undesirability of his continuance in the office in the interests of the public or the Panchayat, sufficient to justify his removal. No doubt, in the notice which was issued to the applicant and in the order which the Collector made it was stated that on account of conviction for an offense involving moral turpitude and for indulgence in activities of that type it was not desirable in the interests of the public or of the Panchayat that the applicant should continue in office. But no attempt was made in the show-cause notice or in the order to show and elucidate now those grounds rendered the petitioner's continuance in the office undesirable in the interests of the public or of the Panchayat. The grounds communicated to the petitioner were vague and indefinite. All that he was informed was that he had been converted for an offence involving moral turpitude and that he was taking part in "activities involving moral turpitude". No details were given to him of these charges or of the contents and the basis of the letter of the Superintendent of Police to the Collector recommending the applicant's removal from the offices of Panch and Sarpanch. No details were given to him of these charges or of the contents and the basis of the letter of the Superintendent of Police to the Collector recommending the applicant's removal from the offices of Panch and Sarpanch. In these circumstances it cannot be held that the petitioner was afforded an opportunity for showing cause by giving an explanation against the action of removal from the office of Panch taken against him. And if no such opportunity was given to him, then the order of the Collector removing the petitioner from the office of Panch cannot be held to be a valid one and in conformity with rule 61 (1) (b). What we have said above really readers it unnecessary for us to deal with the contention advanced by the learned counsel for the petitioner that the two orders of the Collector were bad as the petitioner's conviction u/s 457, Indian Penal Code, did not involve any moral turpitude. It is difficult to see any foundation for the argument. 'Moral turpitude' as defined in Black's Law Dictionary means "an act of baseness, vileness or of depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man". One of the essential elements of the offence u/s 457, Indian Penal Code is the criminal intention of the accused. If a person having the requisite criminal intention is convicted u/s 457, Indian Penal Code, then it cannot be maintained that conviction for the offence does not involve moral turpitude. For these reasons, this petition is allowed and the two orders of the Collector, Rewa, one removing the applicant's name from the register of adults and the other removing him from the office of Panch, are quashed. The petitioner shall have costs of this petition. Counsel's fee is fixed at Rs. 75. The outstanding amount of security deposit shall be refunded to the petitioner. Final Result : Allowed